144 F.

3d 173

Louis R. TESTA, Plaintiff, Appellee,

v.
WAL-MART STORES, INC., Defendant, Appellant.
No. 97-2079.

United States Court of Appeals,

First Circuit.
Heard May 4, 1998.
Decided May 21, 1998.

George R. Moore, with whom Bret D. Gifford and Devine, Millimet &
Branch, P.A. were on brief, for Appellant.
Stewart S. Richmond, Jr., with whom Scott H. Harris and McLane, Graf,
Raulerson & Middleton, P.A. were on brief, for Appellees.
Before TORRUELLA, Chief Judge, SELYA and LYNCH, Circuit Judges.
SELYA, Circuit Judge.

Defendant-appellant Wal-Mart Stores, Inc. (Wal-Mart) insists that the jury

verdict in this piscine personal injury case results from instructional error. After
careful perlustration of the record, we conclude that Wal-Mart is fishing in an
empty stream.

I. BACKGROUND
2

Plaintiff-appellee Louis R. Testa worked as a truck driver for Heavenly Fish, a

wholesaler of tropical fish. On February 2, 1993, Testa arrived at a brand new
Wal-Mart retail outlet in Hinsdale, New Hampshire, with merchandise in tow.
He parked his van on the delivery ramp behind the store and alerted Wal-Mart
to his arrival. A Wal-Mart employee helped Testa unload his ichthyic cargo. In
the process, Testa slipped on the snow-and-ice-coated ramp, fell, and injured
himself.
Wal-Mart photographed the ramp that day and proceeded to conduct a full

investigation of the incident. Before the month was out, a Wal-Mart employee
prepared an internal report noting, inter alia, that Testa had threatened to sue.

On April 24, 1995, Testa made good on his word. Invoking diversity
jurisdiction, see 28 U.S.C. 1332(a), Testa sued Wal-Mart in New Hampshire's
federal district court. Wal-Mart denied that it had committed any actionable
negligence. It pointed out that the mishap occurred on the day of the Hinsdale
store's grand opening and, anticipating a huge turnout, it wanted the staff's
attention focused exclusively on customer service. To that end, it asserted that
Rachelle Manning, an invoice clerk, informed all vendors on February 1 that
Wal-Mart would not accept deliveries the following day. Thus, Wal-Mart
explained, it did not bother to clear the ramp on February 2 because it believed
that no deliveries would be forthcoming. In addition to this defense, Wal-Mart
also suggested that Testa had assumed the risk of using the icy ramp and that
his negligence caused (or at least contributed to) the occurrence of the accident.

The trial itself was brief but jury deliberations were protracted. Eventually, the
jury returned a verdict for the plaintiff in the sum of $55,112. This appeal
ensued.

II. THE JURY'S QUESTION

6

After nearly five hours of deliberation, the jury sent a note to the judge which
read in pertinent part: "Your Honor, can we please have a review of the law
'negligence', and [its] relation to proximate cause?"1 The judge consulted with
counsel and responded to this query by re-reading his original charge on
negligence and proximate cause. The judge asked the jury if the supplemental
instruction satisfied their request and the foreperson responded affirmatively.

The error that Wal-Mart perceives is less with what the judge said than with
what he did not say. Over Wal-Mart's objection, Judge Devine declined to reread his charge on comparative negligence as part and parcel of the
supplemental instruction. In this vein, the judge noted that "you don't get to
comparative negligence until or unless [the jurors] establish that there is
negligence existing on the part of the defendant, and their question specifically
asks for negligence and proximate cause." Based on this scenario, Wal-Mart
maintains that the trial court erred by refusing to include language anent
comparative negligence in the supplemental instruction.

We ordinarily review jury instructions to discern whether they adequately

illuminate the law applicable to the controverted issues in the case without

unduly complicating matters or misleading the jury. See Levinsky's, Inc. v.

Wal-Mart Stores, Inc., 127 F.3d 122, 135 (1st Cir.1997). In that process, we
examine the instructions as a whole rather than taking each fragment in
isolation. See United States v. DeStefano, 59 F.3d 1, 3 (1st Cir.1995). Withal, a
jury instruction given after deliberations have begun comes at a particularly
delicate juncture and therefore evokes heightened scrutiny. See Bollenbach v.
United States, 326 U.S. 607, 612, 66 S.Ct. 402, 90 L.Ed. 350 (1946); Tart v.
McGann, 697 F.2d 75, 77 (2d Cir.1982).
9

Careful craftsmanship of a supplemental jury instruction requires the district

court to walk a fine line--the court can err as easily by overinclusiveness as by
underinclusiveness. See Tatro v. Kervin, 41 F.3d 9, 15 (1st Cir.1994) (warning
that "extra language" may erroneously mislead a jury); United States v. Parent,
954 F.2d 23, 25 (1st Cir.1992) (cautioning against "gratuitous pererrations" in
the course of supplemental jury instructions). Understandably concerned about
this phenomenon, Judge Devine gave the jury accurate legal standards
concerning the precise area of their inquiry--negligence and proximate cause-and eschewed a broader compass. He thus avoided the possible confusion that
might have been engendered had he volunteered an instruction that the jury had
not requested.

10

Wal-Mart contends that, even if the district court's supplemental instruction

adequately responded to the letter of the jury's inquiry, it did not capture the
spirit. In Wal-Mart's view, all negligence concepts are linked, more so in this
case. Thus, the jury's query necessarily implied a curiosity about comparative
negligence and suggested that the court, to be fair, should give an additional
instruction that the jury lacked the sophistication to ask for specifically. We
reject this conjectural construct. It amounts to nothing more than rank
speculation--and we are unwilling to overturn a jury verdict on the basis of
sheer surmise.

11

Here, moreover, the surrounding circumstances suggest that Wal-Mart's

speculation likely is unfounded. For one thing, as Judge Devine remarked,
comparative negligence is an affirmative defense under New Hampshire law,
see Brann v. Exeter Clinic, Inc., 127 N.H. 155, 498 A.2d 334, 336-337 (1985),
and a jury logically would not be expected to reach that issue until it first had
resolved the question of negligence. For another thing, after Judge Devine gave
the supplemental instruction, the jury foreperson responded that the panel's
question had been fully answered. Although this response, in itself, is not
conclusive--as the appellant ruminates, the forelady might have spoken only for
herself or might have grown bashful in an unaccustomed spotlight--it is at least
some evidence that the jury received exactly what had been requested.

12

We will not paint the lily. The usual rule, to which we subscribe, is that when a
jury question is received during deliberations, the judge must address only
those matters fairly encompassed within the question. See Parent, 954 F.2d at
25; Stathos v. Bowden, 728 F.2d 15, 19 (1st Cir.1984); Jury v. R & G Sloane
Mfg. Co., 666 F.2d 1348, 1352-53 (10th Cir.1981); see also United States v.
Ladd, 885 F.2d 954, 961 (1st Cir.1989) (stating that a judge, in answering a
question posed by a deliberating jury, normally should "confine his response to
the approximate boundaries of the jury's inquiry").2 It is a corollary of this rule
that the trial judge has discretion to embellish his answer as he reasonably may
deem advisable. See United States v. Bayer, 331 U.S. 532, 536, 67 S.Ct. 1394,
91 L.Ed. 1654 (1947) (explaining that "once the judge has made an accurate
and correct charge [in response to a jury's question], the extent of [any]
amplification must rest largely on his discretion"); see also Elliott v. S.D.
Warren Co., 134 F.3d 1, 6 (1st Cir.1998) (stating that "within wide limits, the
method and manner in which the judge carries out this obligation [to inform the
jury about the applicable law] is left to his or her discretion"). The operative
word, however, is "discretion". We do not doubt that Judge Devine could have
repeated his comparative negligence instruction as a part of his answer to the
jury's question if he believed that doing so would help the jury to understand
the concepts of negligence and proximate cause. But we see nothing in the
circumstances of this case that compelled the judge to add such an
embellishment or that otherwise required a deviation from the customary
praxis. Consequently, the appellant's first assignment of error fails.

III. DESTRUCTION OF BUSINESS RECORDS

13

Wal-Mart contends that the trial court committed a second instructional error.
Manning testified that she had put a hold on the order previously placed with
Heavenly Fish on February 1, 1993, thus bolstering Wal-Mart's claim that it
had no reason to clear the delivery ramp on February 2. At trial, however, WalMart was unable to produce either the purchase order addressed to Heavenly
Fish or the telephone records for February 1 (the date when Manning claims to
have called). According to Wal-Mart, Manning discarded these records in or
around February 1995 (a few months before Testa brought suit), pursuant to a
standard record-retention policy. Manning stated that she did not know about
the accident at the time and no one instructed her to preserve either the
purchase order or the telephone records.

14

Despite Wal-Mart's protest that it acted in good faith and without notice of the
destroyed records' relevance, the district court instructed the jury that:

A reasonable inference is a deduction which common sense and reason lead you to
15

draw from the evidence. An example is one inference that the plaintiff seeks to have
you draw here is to the effect that the defendant, having known that a lawsuit was
pending, destroyed certain records and did so because defendant knew the records to
be harmful to its own case. But the law holds that such an inference can be drawn
only if the plaintiff proves by a preponderance of the evidence that [the defendant]
not only knew of the potential claim of the plaintiff, but also knew of the potential
relevance of the destroyed documents. And even where plaintiff satisfies this burden
of proof, any inference that may be drawn is permissive and not mandatory. That is,
such inference may or may not be drawn by the jury.
16

The appellant challenges the propriety of this instruction insofar as it allowed

the jury to draw a permissive negative inference from the unavailability of the
purchase order and the telephone records.

17

We have held with some regularity that a trier of fact may (but need not) infer
from a party's obliteration of a document relevant to a litigated issue that the
contents of the document were unfavorable to that party. See, e.g., Blinzler v.
Marriott Int'l, Inc., 81 F.3d 1148, 1158 (1st Cir.1996); Anderson v. Cryovac,
Inc., 862 F.2d 910, 925 (1st Cir.1988); Nation-Wide Check Corp. v. Forest
Hills Distributors, Inc., 692 F.2d 214, 217-18 (1st Cir.1982). This permissive
negative inference springs from the commonsense notion that a party who
destroys a document (or permits it to be destroyed) when facing litigation,
knowing the document's relevancy to issues in the case, may well do so out of a
sense that the document's contents hurt his position. See Beil v. Lakewood
Eng'g & Mfg. Co., 15 F.3d 546, 552 (6th Cir.1994). Consistent with this
rationale, a suitable foundation must exist before such an inference can
materialize. Thus, the sponsor of the inference must proffer evidence sufficient
to permit the trier to find that the target knew of (a) the claim (that is, the
litigation or the potential for litigation), and (b) the document's potential
relevance to that claim. See Blinzler, 81 F.3d at 1159. Moreover, even if these
foundational requirements have been met, the trier nonetheless may refuse to
draw the negative inference. In other words, the inference is permissive, not
mandatory. See id.

18

Wal-Mart acknowledges this doctrine, but labors to convince us that Testa

failed to lay an adequate foundation in this instance. We are not persuaded.

19

We think it is obvious that a rational jury could conclude that Wal-Mart was on
notice of Testa's claim. The accident occurred on February 2, 1993. Wal-Mart
investigated immediately and, as early as February 18, 1993, Wal-Mart
completed an internal accident report in which it acknowledged Testa's
inclination to sue. There is nothing in the record that would have dispelled this

premonition.
20

By like token, a rational jury also could conclude that Wal-Mart was on notice
of the records' relevance. After all, Wal-Mart's defense from the start was
anchored on the premise that it had no reason to anticipate any deliveries on the
day in question. Surely, then, a reasonable factfinder could view Wal-Mart's
placing of a purchase order for delivery on February 2 to be antagonistic to this
defense. The telephone records showing whether Manning in fact called
Heavenly Fish to abrogate the purchase order (and if so, when) also would bear
on this line of defense.3 Accordingly, a jury could find that Wal-Mart had
ample notice of both the claim and the relevance of the records.

21

Wal-Mart offers two rejoinders. First, it points to evidence showing that it

destroyed the documents not for a nefarious purpose, but only in compliance
with a corporate record-retention policy. We readily agree that evidence that
documents were destroyed in the ordinary course of business, pursuant to
routine practice, is material to the inquiry, but the mere introduction of such
evidence neither removes the question from the jury's ken nor precludes the
jury from drawing a negative inference. See Nation-Wide Check, 692 F.2d at
219.

22

Second, Wal-Mart notes that there is no proof that Manning (the Wal-Mart
employee who actually discarded the records) knew of either the claim or the
records' relevance to it. This is true as far as it goes--but it does not go very far.
Whether the particular person who spoils evidence has notice of the
relationship between that evidence and the underlying claim is relevant to the
factfinder's inquiry, but it does not necessarily dictate the resolution of that
inquiry. The critical part of the foundation that must be laid depends, rather, on
institutional notice--the aggregate knowledge possessed by a party and its
agents, servants, and employees. See Blinzler, 81 F.3d at 1158-59; NationWide Check, 692 F.2d at 217-18. Here, the preconditions for jury submission
of the permissive negative inference were fully satisfied.

23

We need go no further. We hold that, on these facts, the district court properly
told the jury that it could (but need not) draw a negative inference if the
plaintiff proved by a preponderance of the evidence that, when Wal-Mart
destroyed the documents, it had notice both of a potential lawsuit and of the
documents' relevance to the claim that underlay such a suit.

24

Affirmed. Costs to appellee.

The note also contained another question, but the appellant does not assign
error to the judge's handling of the second question and we therefore eschew
any discussion of it

A different rule sometimes may apply in criminal cases, as a court often must
take particular pains to remind a deliberating jury of the presumption of
innocence, the burden of proof, the defendant's right to remain silent, and
kindred matters. See Bollenbach, 326 U.S. at 613-14, 66 S.Ct. 402. No such
concerns are raised in this civil action

Wal-Mart argues that these documents would be cumulative of Manning's

testimony, but that argument begs the question. The records would be
cumulative only if they matched Manning's recollection, and their destruction
precluded the plaintiff (and the jury, for that matter) from ascertaining whether
the records and the testimony were consistent